Terminated Probationary City Employee Wins Major Victory in Disability Case

In a case that can have some far reaching implications a terminated probationary sanitation worker got his formally dismissed case sent back to the federal district court from the 2nd Circuit Court of Appeals. Anthony P. Capobianco, Jr. in Capobianco v. City of New York, decided yesterday, convinced the Second Circuit that his dismissal may have been the result of the Sanitation Department’s illegal discriminatory action.

Union reps and advisors often advise terminated probationers that “you don’t have a prayer” when it comes to fighting a dismissal. While fighting an unjust probationary dismissal is difficult there are avenues. Capobianco offers one such avenue.

Anthony Capobianco wanted to be a sanitation worker most of his adult life. He took the test in 1983 and 1990 and scored perfect tests but he had vision problems. Since sanitation workers drive vehicles good sight is a bona fide occupational qualification (which means criteria in which a potential employer could legally not discriminate against you by refusing to hire you).

His vision problems were eventually corrected by cataract surgery and the DOS initial rejection of him in 1997 became an acceptance in 1998. He disclosed his vision problems on his employment application.

Initially he was assigned to a day shift on a two-person truck. Things went well until he was assigned to the night shift. At this point he had great difficulty driving and was diagnosed with night blindness. After being assigned to desk duty he was placed on limited duty which permitted day driving only.

He received satisfactory ratings and after several months was eventually discharged.

In order to maintain a claim in federal court under the Americans with Disability Act (ADA) and the New York State and City Discrimination laws it is normally necessary to file appropriate complaints with those agencies. In Capobianco’s case the EEOC (the federal agency handling these complaints) determined he had a viable claim and authorized him to sue in court. There are a number of ways to commence disability discrimination lawsuits but this is probably the most common one utilized.

After he commenced his court case the district court dismissed his claim finding that the City (DOS) could dismiss a probationary employee for any or no reason at all. The Second Circuit reversed finding that probationary employees may not be dismissed for discriminatory reasons and sent the case back to district court for trial.

There are a number of similar cases involving DOE employees. In one unreported case a social worker who also suffered from night blindness had difficulty driving to school. He got along great with the principal and the principal gave him “flex time” so he could avoid the harsh morning sun when he drove.

Of course things didn’t continue to go well with the principal (that’s a shock) and the principal decided to withdraw his accommodation. The Medical Bureau blindly (no pun intended) followed the principal and the social worker went to his union rep who told him that flex time was not appropriate under the social work contract and there was nothing that could be done about it.

The social worker hired his own attorney at considerable expense and recently the court ordered that the flex time be restored.